Monday, March 16, 2015

Well, I read the latest installment from the bail insurance
people – you know, the ones who want to keep our current system of bail in
place so they can make boatloads of money – and they make the case for why bail
isn’t about the money at all; instead, apparently, it’s about influence.

They’re right to a degree. Bail shouldn’t be about money. Bail
is all about release, and money is simply the one condition of many that, uniquely
and unfortunately, tends to stand in the way of the actual release of bailable
defendants. But I think what the insurance company lobbyists are getting at is
the idea that money isn’t such a big deal to them – to the commercial surety
industry.

The only problem with that argument is the fact that money
is really kind of a huge deal to the commercial surety industry. In fact, it’s
such a big deal that if a defendant doesn’t have any money, the industry won’t even
help him or her out. It’s such a big deal that if a jurisdiction decides to
follow the law and the evidence and promote the release on recognizance or on “unsecured”
financial conditions (the kind that don’t produce any kind of profit), the bail
insurance companies send in lawyers to block those improvements or even to pass
bills designed to force judges to use more money. It’s such a big deal that the
commercial bail industry spends a ton of time trying to figure out ways not to
pay back any money once they’re involved. And it’s such a big deal that the
insurance companies will do just about anything – pay for research, send out
armies of lobbyists, and mislead government officials and private funders just
to keep the flow of money streaming in (in a recent Mother Jones article, a
bail lobbyist bragged that they have never had to cover any loss; apparently,
they leave payment of the losses to defendants, their families, and the bail
agents.) They make sure the laws only allow for forfeiture for court appearance
and not public safety, and they continue to tell their bail agents all kinds of
factual distortions to keep those bondsmen from recognizing why their
businesses are ultimately going to fail.

In the article that I read, the insurance company also says
that public pretrial services agencies simply don’t have “skin in the game,” or
influence. They forget to point out that these agencies play a crucial role in
the pretrial phase that has grown up around a commercial bail industry that has
refused to change. Pretrial agencies supervise for both court appearance and
public safety (yes, insurance companies, there are two constitutionally valid
purposes for limiting one’s pretrial freedom, and if you set conditions to
protect the public, you need someone to make sure those conditions are
followed).

And, what’s this whole “skin in the game” thing? I mean,
it’s actually a pretrial services officer’s job to do these things. It’s like
telling a cop that he really can’t do an effective job as a police officer
because he’s going to be paid whether he fights crime or not. And, by the way,
the insurance companies have apparently forgotten about the history of bail,
which illustrates massive debates during their creation over the fact that
bondsmen lose all sense of accountability and responsibility once the defendant
pays a fee or indemnifies the surety. Basically that’s the main reason why no
other country has allowed commercial bail bondsmen to exist. We did it in
America because we didn’t have any better alternatives, and we misunderstood
how secured bonds would end up detaining just as many people in the future as
the system we’d been using before.

I talk to bail agents every now and then, and every time I
do I tell them that the future of commercial bail or “private pretrial release”
– if it exists at all – will look dramatically different than the current
system. For one, the bail agents would have to supervise for court appearance and public safety; they’d have to take
all comers; and although they might be able to charge a fee for service that
would cover the cost of supervision, they’d have to stop relying on these
arbitrary amounts of financial conditions that don’t have anything to do with
court appearance and public safety.

In fact, between you and me, bail agents, the insurance
companies aren’t doing you any favors these days. I’ll give you just one
example – the insurance companies continually tell you to cite to certain DOJ data
to say that surety bonds are superior to other forms of releases.
Unfortunately, DOJ itself – yes the same entity that produced the data – has
said that you can’t do that. So as soon as you cite the data, someone like me
goes in and shows people the official DOJ stance that contradicts everything
you just said. The insurance companies know about the DOJ stance, because it’s
in a published advisory and they complained about it mightily when it came out.
But they just won’t tell you bondsmen about it. It works better for them to
have you go in and cite to bad research in the off chance that it might work. Bottom
line – if you bail agents continue to allow the insurance companies to
strategize your future, you won’t have one.

In fact, any decent improvement in bail in America leaves
out the insurance companies, which only have a stake in a system with high,
arbitrary money amounts that, even when forfeited, never affect their profits. They
say that bail is all about “influence,” but frankly, the only influence the
insurance companies care about is the kind of back-room and oily influence they
have over legislatures other public officials. The good news is that all of
that’s starting to change.

Finally, because the insurance lobbyists think we don’t know
anything about the purpose of pretrial release, let’s review. Historically and
legally, bail is release, just as “no bail” is detention. The purpose of bail
up until the Normans invaded England was to avoid blood feuds, but as soon as
the Normans started building jails and holding folks until judges showed up for
court, the purpose of bail quickly became to release people and it's stayed that
way ever since. So it’s easy: the purpose of bail is to release people, and the
purpose of no bail is to detain people. Compare those purposes to the purposes
of conditions of bail or release, that
is, limitations on pretrial freedom. Those purposes are court appearance and
public safety, currently the only two constitutionally valid purposes for
limiting release.

The bail insurance companies typically say that, “The
purpose of bail is court appearance.” What they mean is that the purpose of
money – or one condition of bail – is court appearance, because money can only
be forfeited for failure to appear for court, and bondsmen and bail insurance
companies only deal in money. They have confused bail – a process of release –
with one of its conditions. They don’t talk about public safety because bail
insurance companies are not in the business of public safety, and so they don’t
really care if a defendant commits a crime while on pretrial release. When the
Supreme Court recognized public safety as a valid purpose for limiting pretrial
freedom, the bail insurance people didn’t evolve to take that into
consideration. I’m not sure why, but it seems like maybe they just didn’t want
the extra work of trying to supervise for public safety. I mean, that takes a
bit of work, right? And why work when you can get your money for nothing?
Finally, the insurance companies don’t really care about release because their
system of requiring payment prior to release actually causes a lot of
detention. They say there’s no such thing as a bailable defendant stuck in jail
because he or she can’t pay the money to get out, but that’s just dumb.

Bail is, in fact, all about money right now. Give it five
years, though, because that’s going to change.

Monday, March 2, 2015

If you’re writing about
excessive bail, I hope you’ll read this quick blog, which may give you some idea of how we're changing the typical excessive bail narrative.

For over 100 years, when they
have actually addressed it, judges have been deciding excessive bail cases only
one way. They take the amount – typically, a really high and arbitrary amount –
and they compare that amount to other, equally arbitrary amounts in similar
cases. The idea of deciding whether the amount is “reasonable” allows them to
do this kind of fact-based analysis, and virtually all state supreme courts
have said that excessive bail is defined as unreasonable bail.

The absurdity of this kind of
analysis, however, is readily apparent by the fact that we actually have ALR articles
that try to compile excessive bail cases, and those articles will often limit
their compilation to, for example, “cases over $500,000,” as if a set sum can adequately delineate where the
proper analysis of reasonableness or excessiveness can actually begin.

Now, however, there's a
movement to analyze excessive bail cases differently, and it doesn’t involve
any radical changes; indeed, it only involves getting back to the basics of the
test for excessiveness itself.

First, though,
realize that any excessive bail discussion can now rightfully include both
federal and state law in the same document. Whereas once bail scholars used to
debate whether the bail clause of the 8th Amendment to the U.S.
Constitution was “incorporated” against the states, now everyone seems to agree
that the Supreme Court believes that it is. Your cite on this point will be a
bit strange, however, as you’ll likely be citing to footnote 12 in McDonald v. Chicago, a Second Amendment
case, and that footnote’s reference to Schilb
v. Kuebel as your authority. Even
so, it’s a big deal, because now at least you have a decent federal standard to
work with.

That standard comes from United States v. Salerno, in which the
Supreme Court said that excessive bail involves a balancing test – i.e.,
balancing the government’s proposed conditions of release or detention with the
perceived evil, or lawful purpose. This test, alone, opens the door to many
more excessive bail arguments, once you realize that conditions or bail, or
limitations on pretrial freedom, may include more than just financial
conditions, and may only lawfully have one of two purposes – court appearance
or public safety. This last requirement is extremely important. Bail set to
punish is an unlawful purpose, and bail set to detain is equally unlawful. It’s
like setting bail to impress your friends. That seems absurd, but we need to
start thinking of conditions of bail (i.e., release) set to detain someone as being
equally absurd and unlawful.

If you’re writing about
excessive bail, realize, too, that since virtually every state defines
excessive bail as “unreasonable,” we now have some pretty good research showing
that secured money in most, if not all cases, is excessive because it's unreasonable. For example, we have
research showing that setting an unsecured financial condition will get you the
exact same results for public safety and court appearance as setting a secured
financial condition, but will lead to less unnecessary detention. If you get
the same results from a less restrictive condition, it simply wouldn’t be
reasonable to set the more restrictive one, and thus the more restrictive condition should be deemed excessive.
The essence of the Excessive Bail Clause is to keep the government from doing
things to defendants “just to make sure.” Setting a secured financial condition violates the Clause, however, by exceeding the standard for setting conditions generally,
which is that they can only be set to provide “reasonable assurance” or either
public safety or court appearance, and not complete assurance or even “extra
assurance.”

Basically, any research that
shows that any condition of release doesn’t work – that is, that the condition
doesn’t further the lawful purposes of bail – would argue for that condition to
be declared unreasonable and thus excessive. But in bail, we have even more
important research to help us. We now have research showing that if a judge
sets a secured financial condition of release on a lower risk defendant, and if
that lower risk defendant stays in jail due to his or her inability to find the
money, bad things start to happen. In fact, the longer they stay in jail, the
more likely they are to harm the public and not to come back to court. Now, if
you’re a judge setting a condition of release to protect the public and get
someone to return to court, would it be reasonable to set a condition of release
that ended up doing the opposite of what you intended? Absolutely not. Would it
thus be excessive? Absolutely.

Finally, if you’re writing
about excessive bail, you’re going to have to deal with what I call the
“unfortunate line of cases,” which is that line of cases that says,
essentially, a financial condition isn’t excessive simply because someone can’t
afford it. This line of cases is unfortunate because it's a complete aberration
to the legal and historical notion that bail should equal release. The line was
created at a time in America when we were running out of personal sureties,
and we had not yet tried commercial sureties. We had tons of bailable
defendants being detained unintentionally due to their lack of sureties and
their inability to afford the financial condition themselves. Apparently, back
then, judges were pretty skittish about flat-out releasing all bailable
defendants (even though we had been doing that very thing for the thousand-year
period before), and they didn’t have any other alternatives – i.e., no
supervision, no risk assessment, no non-financial conditions of release, no
research, etc., to alleviate their concerns. The fact is, though, today we have
all the things necessary to encourage judges or legislatures to completely overturn this entire line of cases.
Indeed, the cases have been
overturned through the enactment of a single sentence in both the D.C. and
federal bail statutes, which both say, essentially, that money cannot result in
the pretrial detention of the defendant.

Bail reform in America means
that we have to get back to basics in our legal foundations. Just remember that
if something is unfair, unreasonable, irrational, or arbitrary, it’s likely
unlawful. Because money at bail is all of these things, it’s simply a matter of
time before it’s gone.

About Me

Hello everyone! I'm a criminal justice system analyst with 25 years of legal experience. I was editor-in-chief of the law journal in law school, and I worked as a law clerk to a federal appellate judge right after graduation. I then worked in private practice for several years in Washington DC before I came back to Colorado, where I became interested in criminal justice. I worked for both the state and federal courts of appeals as a staff attorney doing criminal appeals, and I also taught at Washburn Law School for a year before I got involved in the local criminal justice system issues in Jefferson County, Colorado. In that job I quickly realized that there was a lot of room for criminal justice reform, and that's what I've been doing ever since.

For the past several years I've been working on reforming America's traditional system of administering bail. Believe me, it really needs it. I started this blog because I was getting somewhat fed up with all of the slanted misinformation and self-serving research and analyses circulated in the field. This is my little way of chiming in.

I think I've had plenty of formal education, and I hope I'm not forced to get any more (although I'm taking two classes on Coursera!). I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college.

I am currently the Executive Director of a Colorado nonprofit called the Center for Legal and Evidence-Based Practices. It serves as my platform for performing neutral and objective research and analysis of topics relating to bail and pretrial justice. I hope that you'll get something out of this blog, which will undoubtedly contain a few things you aren't likely to find anywhere else.